Capital punishment in traditional Jewish law has been defined in Codes of Jewish law dating back to medieval times, based on a system of oral laws contained in the Babylonian and Jerusalem Talmud, the primary source being the Hebrew Bible. In traditional Jewish law there are four types of capital punishment: a) stoning, b) burning by ingesting molten lead, c) strangling, and d) beheading, each being the punishment for specific offenses. Except in special cases where a king can issue the death penalty, capital punishment in Jewish law cannot be decreed upon a person unless there were a minimum of twenty-three judges (Sanhedrin) adjudicating in that person's trial who, by a majority vote, gave the death sentence, and where there had been at least two competent witnesses who testified before the court that they had seen the litigant commit the offense. Even so, capital punishment does not begin in Jewish law until the court adjudicating in this case had issued the death sentence from a specific place (formerly, the Chamber of Hewn Stone) on the Temple Mount in the city of Jerusalem.Jerusalem Talmud (Horayot 2a): "They do not make a person liable until such instruction comes forth from the Chamber of Hewn Stone. Said Rabbi Yohanan: The reason being is that there is a teaching that [explicitly] states, 'From that place which the Lord shall choose' ()." Cf. Babylonian Talmud (Rosh Hashanah 31a–b; Avodah Zarah 8b), where the Sanhedrin intentionally removed themselves from the Chamber of Hewn Stone () on the Temple Mount and sat in the Hanuth, and thence removed themselves to other places (known as the ten migratory journeys of the Sanhedrin) so that the court could not execute an offending Jew, since the 23 judges needed to condemn a man to die would formerly convene in the Temple Mount to decide on capital cases.
History Capital and corporal punishment in Judaism have a complex history which has been a subject of extensive debate. The Bible and the Talmud specify capital punishment by the "Four Executions of the Court," — stoning, burning, decapitation, and strangulation — for the most severe transgressions, and the corporal punishment of flagellation for intentional transgressions of negative commandments that do not incur one of the Four Executions. According to Talmudic law, the authority to apply capital punishment ceased with the destruction of the Second Temple."[A]t a time when there is no priest [serving in the Temple], there is no judgment [of capital cases]." Sanh. 52b. The Mishnah states that a Sanhedrin that executes one person in seven years — or seventy years, according to Eleazar ben Azariah — is considered bloodthirsty. During the Late Antiquity, the tendency of not applying the death penalty at all became predominant in Jewish courts. In practice, where medieval Jewish courts had the power to pass and execute death sentences, they continued to do so for particularly grave offenses, although not necessarily the ones defined by the law. While it was recognized that the use of capital punishment in the post-Second Temple era went beyond the biblical warrant, the rabbis who supported it believed that it could be justified by other considerations of Jewish law. Whether Jewish communities ever practiced capital punishment according to rabbinical law, and whether the rabbis of the Talmudic era ever supported its use even in theory, has been a subject of historical and ideological debate.
The 12th-century Jewish legal scholar Maimonides stated that "It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death." Maimonides argued that executing a defendant on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until convictions would be mere "according to the judge's caprice". Maimonides was concerned about the need for the law to guard itself in public perception, to preserve its majesty, and to retain the people's respect.Moses Maimonides, The Commandments, Neg. Comm. 290, at 269-271 (Charles B. Chavel trans., 1967).
The position of Jewish law on capital punishment often formed the basis of deliberations by Israel's Supreme Court. It has been carried out by Israel's judicial system only once, in the case of Adolf Eichmann.
Capital punishment in classical sources In the Pentateuch
The institution of capital punishment in Jewish law is defined in the Law of Moses (Torah) in multiple places. The Mosaic Law provides for the death penalty to be inflicted upon those persons convicted of the following offenses: adultery; bestiality; blasphemy child sacrifice false testimony in capital cases false prophecy, proselytizing and promoting other religions male homosexual relations, idolatry, actual or virtual, , incestuous relations, insubordination to supreme authority lying about one's virginity upon marrying a spouse () kidnapping, licentiousness of a priest's daughter murder, , , et seq. rape committed against a betrothed woman striking, cursing, or otherwise rebelling against parental authority, , Sabbath-breaking, , touching Mount Sinai while God was giving Moses the Ten Commandments witchcraft, divination, necromancy, sorcery, etc., Marcus Jastrow, Jewish Encyclopedia, s.v. Capital Punishment
In Rabbinic Judaism
The principal tractate in the Talmud that deals with such cases is Tractate Sanhedrin.
Cases concerning offenses punishable by death are decided by 23 judges.Mishnah Sanhedrin 1:4 The reason for this odd number is that the early rabbis had learnt that it takes at least 10 judges to convict a man, and another 10 judges to acquit a man, and the court being unequal will result in a verdict rendered by majority vote.Babylonian Talmud (Sanhedrin 2a-b) Strict regulations were in place as to how these judges were to be selected, based on their sex, age and family standing. For example, they could not appoint a judge who did not have children of his own, for he was thought to be less merciful towards other men's children.Maimonides, Mishne Torah (Hil. Sanhedrin 2:3) Neither could they select a judge who was not a male, by way of an edict,Maimonides, Mishne Torah (Hil. Melakhim u'milḥamot 1:6 )Philo of Alexandria, Special Laws (Book III, chapter XXXI (169–170) and which others say was because of the levity and temerity of the other sex.Josephus (Antiquities IV.219; Against Apion 2.201) Nor could they admit the testimony of women in a court of Jewish law where the death-penalty hinged over the accused.Sifrei on Deuteronomy 19:15Babylonian Talmud (Shevu'ot 30a, Rashi, s.v. ); Jerusalem Talmud (Sanhedrin 3:9)Maimonides, Mishneh Torah (Hil. 'Edut 9:2)Joseph Karo, Shulhan Arukh (Hoshen Mishpat, Hil. Edut 7:4; 35:14)
The harshness of the death penalty indicated the seriousness of the crime. Jewish philosophers argue that the whole point of corporal punishment was to serve as a reminder to the community of the severe nature of certain acts. This is why, in Jewish law, the death penalty is more of a principle than a practice. The numerous references to the death penalty in the Torah underscore the severity of the sin, rather than the expectation of death. This is bolstered by the standards of proof required for application of the death penalty, which were extremely stringent.Babylonian Talmud Makkoth 7b The Mishnah outlines the views of several prominent first-century CE rabbis on the subject:
"A Sanhedrin that puts a man to death once in seven years is called a murderous one. Rabbi Eliezer ben Azariah said, 'Or even once in 70 years.' Rabbi Tarfon and Rabbi Akiba said, 'If we had been in the Sanhedrin, no death sentence would ever have been passed'; Rabban Simeon ben Gamaliel said, 'If so, they would have multiplied murderers in Israel.'"Mishna, Makkoth 1:10
The Talmud notes that "forty years before the destruction of the [Second] Temple, capital punishment ceased in Israel."Babylonian Talmud (Avodah Zarah 8b; Shabbat 15a); Jerusalem Talmud (Sanhedrin 1:1 [1b]) This date is traditionally put at 28 CE, a time that corresponds with the 14th year of Tiberius' reign. At this time, the Sanhedrin required the approbation of the Roman procurator of Judea before they could punish any malefactor by death. Other sources, such as Josephus, disagree. The issue is highly debated because of its relevance to the New Testament trial of Jesus. Ancient rabbis did not like the idea of capital punishment, and interpreted the texts in a way that made the death penalty virtually non-existent.
Legal proceedings involving capital punishment were to be handled with extreme caution. In all cases of capital punishment in Jewish law, the judges are required to open their deliberations by pointing out the good qualities of the litigant and to bring up arguments about why he should be acquitted., s.v. Sanhedrin 32b, explaining Mishnah Sanhedrin 4:1 Only later did they hear the incriminating evidence. It was almost impossible to inflict the death penalty because the standards of proof were so high. As a result, convictions for capital offenses were rare, but did happen in Judaism.Mishnah Maccot, 1:10 The standards of evidence in capital cases include: Two witnesses were required. Acceptability was limited to: Adult Jewish men who were known to keep the commandments knew the written and oral law, and had legitimate professions; The witnesses had to see each other at the time of the sin; The witnesses had to be able to speak clearly, without any speech impediment or hearing deficit (to ensure that the warning and the response were done); The witnesses could not be related to each other, or to the accused. The witnesses had to see each other, and both of them had to give a warning (hatra'ah) to the person that the sin they were about to commit was a capital offense; This warning had to be delivered within seconds of the performance of the sin (in the time it took to say, "Peace unto you, my Rabbi and my Master"); In the same amount of time, the person about to sin had to both respond that s/he was familiar with the punishment, but they were going to sin anyway; and begin to commit the sin/crime; However, if the accused has already committed the crime, the accused would have been given a chance to repent (i.e. Ezekiel 18:27), and if they repeated the same crime, or any other, it would lead to a death sentence. If witnesses were caught lying about the crime, they would be executed. The Beth Din (rabbinical court) had to examine each witness separately; and if even one minor point of their evidence, such as eye color, was contradictory the evidence was considered contradictory, and the evidence was not heeded; The Beth Din had to consist of a minimum of 23 judges; The majority could not be a simple majority - the split verdict that would allow conviction had to be at least 13 to 10 in favor of conviction; If Beth Din arrived at a unanimous verdict of guilty, the person was let go - the idea being that if no judge could find anything exculpatory about the accused, there was something wrong with the court.Babylonian Talmud, Tractate Sanhedrin, page 17a. Also Maimonides, Mishneh Torah, Sanhedrin, Chapter 9. The witnesses were appointed by the court to be the executioners. Where the death sentence was warranted but the court did not have the jurisdiction to mete out the death sentence, such as when there were not two or more witnesses, the court had the authority to lock up the convicted individual within a cupola, or similar confined structure, and to feed them meager portions of bread and water until they died.Babylonian Talmud (Sanhedrin 81b)
Megillat Taanit